Thursday, April 25, 2013

Troubled homeowners who received modified mortgages through a federal program are seeing high default rates, a troubling trend that officials inadequately understand, according to an investigator’s report released Wednesday.

The oldest permanent modifications made through the federal Home Affordable Modification Program, which launched in 2009, were redefaulting at a rate of 46.1% as of March 31, according to the report from the special inspector general overseeing the Treasury Department’s efforts to shore up the U.S. financial system. HAMP’s permanent modifications from 2010 have redefault rates ranging from 28.9% to 37.6%.

“The number of homeowners who have redefaulted on a HAMP permanent mortgage modification is increasing at an alarming rate,” the report said. “Treasury’s data shows that the longer a homeowner remains in HAMP, the more likely he or she is to redefault out of the program.”

Unfortunately, Treasury officials have an insufficient understanding of factors behind failures, according to the report.

“Better knowledge of the characteristics of the loan, the homeowners, the servicer, or the modification, more prone to redefault will increase Treasury’s understanding of the underlying problems that cause redefaults and provide Treasury an opportunity to address these issues proactively,” the inspector general said.

HAMP mortgages are modified to lower monthly payments by cutting interest rates and extending terms, among other actions. Servicers and borrowers receive incentive payments through the program.

Unsuccessful modifications have a “devastating effect,” according to the report.

“Redefaulted HAMP modifications on already struggling homeowners when any amounts previously modified suddenly come due,” according to the report. “When the homeowner cannot pay it, they lose their home to foreclosure.”

When Treasury launched HAMP, officials said the program could help 3 million to 4 million at-risk homeowners avoid foreclosure. However, as of March 31, only about 2 million HAMP modifications had been started, and 54% of these have been cancelled, according to the report.

Looking at Treasury’s use of funds from the Troubled Asset Relief Program, which was designed to shore up the U.S. financial system, less than 2%, or about $7.3 billion, has been spent on homeowner-relief programs, such as HAMP, as of March 31. Meanwhile, Treasury has spent 75% of TARP funds on rescuing financial institutions, the report said.

“For example, the PNC Financial Services Group PNC+1.24%, a large regional east coast bank, alone received $7.6 billion, nearly the same amount of TARP funds used to help struggling homeowners throughout the nation,” according to the report. “Treasury pulled out all the stops for the largest financial institutions, and it must do the same for homeowners.”

Wednesday, April 24, 2013

WASHINGTON -- New York Attorney General Eric Schneiderman has privately criticized the Obama administration and the Department of Justice for not aggressively investigating dodgy mortgage deals that helped trigger the financial crisis, according to senators and congressional aides who met with him this month.

New York’s top prosecutor is co-chair of the administration’s year-old Residential Mortgage Backed Securities Working Group, an initiative that President Barack Obama called for in his State of the Union address last year. In a sign of Schneiderman’s importance to the group, the White House seated him behind Michelle Obama during the speech.

Schneiderman, a Democrat who has attempted to investigate Wall Street, expressed his frustrations with the administration earlier this month during private meetings with Democratic senators on Capitol Hill, arguing that he was “naive” when he first entered into the partnership with the Justice Department, lawmakers and their aides said.

Schneiderman has recently directed his attention to working with lawmakers and outside groups to pressure the administration to toughen its approach. He traveled to Washington for meetings with Sens. Elizabeth Warren (D-Mass.), Carl Levin (D-Mich.), Sherrod Brown (D-Ohio) and Jeff Merkley (D-Ore.), among others, according to people who attended the meetings. The four senators have been among the loudest critics of the Obama administration's efforts to hold the financial industry accountable for alleged wrongdoing, charging they have not gone far enough.

Examples of criticized settlements include the Justice Department's decision not to file criminal charges against financial companies accused of manipulating benchmark interest rates, as well as banks alleged to have helped drug cartels launder money through the U.S. financial system. Government panels like the Financial Crisis Inquiry Commission and the Levin-chaired Permanent Subcommittee on Investigations that referred cases for potential prosecution have seen their recommendations cast aside.

Schneiderman excoriated Justice Department officials for their approach in targeting wrongdoing by financial institutions in private meetings with lawmakers.

“He expressed similar frustrations that the public has expressed,” Levin said.

Levin said that Schneiderman argued that the Justice Department lacks the “political will” to forge ahead with prosecutions of high-ranking financial executives and large financial groups.

“There's been a real lack of going after the top folks, in general,” Levin said. His subcommittee has aggressively probed potential wrongdoing by leading financial institutions, including alleged money laundering at HSBC and mortgage-related misdeeds at Goldman Sachs.

Another senator, who requested anonymity, said of Schneiderman that it's “very clear he's extremely frustrated."

Schneiderman’s behind-the-scenes criticism may sting administration and enforcement officials, who for years have been dogged by allegations that they have been soft on Wall Street.

The White House attempted to rebut those accusations in part by giving Schneiderman a plum role on a unit launched with great fanfare. He was promised aggressive prosecutors and investigators who through enforcement action would put to rest allegations that the Obama administration has been lax on pre-financial crisis misconduct.

The Justice Department has promoted four cases as having been brought thanks to the securitization task force: two separate settlements reached between the Securities and Exchange Commission and JPMorgan Chase and Credit Suisse, and two civil cases Schneiderman has brought in state court against those same banks.

The SEC’s settlements ended investigations that began long before the formation of the securitization task force.

Critics allege the task force has racked up an unimpressive record. In a sign of its decreased standing at the White House, Obama did not mention it in his State of the Union address earlier this year.

“No one is happy with the pace of the task force at all. It's a travesty,” said Brian Kettenring, a community organizer who runs the advocacy groups Leadership Center for the Common Good and Campaign for a Fair Settlement. “It’s one of the biggest black marks on this administration, in terms of what they promised versus what has happened.”

Michael Bresnick, executive director of the Obama-formed Financial Fraud Enforcement Task Force, an oft-criticized collection of regulators that has spent much of its time targeting low-level mortgage brokers and borrowers, said last month the RMBS group is “actively investigating fraud” related to mortgage securities.

More than 200 people from the working group are currently investigating potential misconduct in mortgage securities, the Justice Department said.

“Many more investigations are ongoing,” Bresnick said.

Part of the administration’s embrace of Schneiderman was guided by his appeal to liberal groups, who view him as the new sheriff of Wall Street and have criticized the administration’s approach to alleged misconduct by big banks.

Schneiderman often describes how he is holding Wall Street accountable during private meetings with key interest groups, participants in the meetings have said. His office has demanded various internal bank documents on activity ranging from alleged attempts to manipulate benchmark interest rates to the pre-financial crisis securitizations of home loans that eventually defaulted.

New York’s top law enforcement officer also has the two pending civil cases against Credit Suisse and JPMorgan Chase for allegedly misleading investors in mortgage bonds. Both banks have disputed the allegations.

Schneiderman relied on the Justice Department to bring those two cases, officials said. The agency and several U.S. Attorney’s Offices combined to interview more than 40 people and provided more than a dozen analysts and attorneys to review documents for Schneiderman’s lawsuits, officials said.

“The sharing of information and expertise has been certainly beyond anything I've ever seen or been aware of," Schneiderman said when he announced his JPMorgan lawsuit in October. "It has enabled us to move forward more quickly and more aggressively than we would have.”

Justice spokeswoman Adora Andy Jenkins said the agency “supplied and continues to supply crucial investigative and litigation support, technological resources, and expertise to these cases.”

In the months after Schneiderman took office in 2011, large financial institutions and their lawyers said they feared him. Now, some have said privately in interviews that they view him as a nuisance, given the dearth of cases he has brought in light of his aggressive requests for documents.

Instead, another New York state regulator who is viewed as a rival, Superintendent of Financial Services Benjamin Lawsky, has emerged as the key Wall Street scourge, earning the enmity of some industry executives for his enforcement activities and willingness to buck federal regulators.

In his most notable case, Lawsky secured $340 million from Standard Chartered, a UK bank, to settle accusations the bank hid key details from regulators involving at least $250 billion in illicit transactions with Iran and potentially violated U.S. sanctions policy.

At the time of the settlement, Levin, the powerful chairman of the Senate's investigations panel, said that Lawsky and his team "showed that holding a bank accountable for past misconduct doesn’t need to take years of negotiation over the size of the penalty; it simply requires a regulator with backbone to act.”

Members of advocacy groups who have met with Schneiderman have expressed disappointment in his own efforts to hold financial institutions accountable, and question his criticisms of the administration. Those who spoke on the condition of anonymity for fear of jeopardizing their relationships with his office described Schneiderman’s rhetoric as far more aggressive than his investigations.

"Millions of households are still reeling from the mortgage crisis, which continues to be a drag on our economic recovery," said Schneiderman spokesman Damien LaVera in response.

“The attorney general ... is working constructively with the Justice Department ... [and] will continue to work on multiple fronts with activists and allies inside and outside the government to find aggressive, creative ways to ensure that struggling homeowners in New York and around the country get the relief they deserve,” LaVera added.

Schneiderman maintains the backing of some liberal groups, in part because of his efforts to convince the White House to fire Edward DeMarco, the government regulator overseeing state-controlled mortgage giants Fannie Mae and Freddie Mac.

Some of these groups have been critical of DeMarco, the acting head of the Federal Housing Finance Agency, for his refusal to allow the mortgage companies to forgive distressed borrowers’ mortgage debt. Earlier this year Schneiderman prepared a memo outlining a potential way in which the White House could replace DeMarco.

Thursday, April 18, 2013

The New York State Department of Financial Services settled an investigation into the force-placed insurance practices ofQBE for $10 million, according to the offices of Governor Andrew Cuomo.

QBE will pay that multi-million penalty while also compensating homeowners harmed by QBE’s force-placed insurance practices. The company also agreed to undergo a series of reforms.

Force-placed insurance is the practice of a servicer or bank taking out an insurance policy when a homeowners own insurance policy lapses.

Controversies have developed from the practice with the policies placed on the properties often more expensive than voluntary insurance contracts.

New York Superintendent of Financial Services Benjamin Lawsky said in a statement, "QBE has done the right thing by adopting these reforms. We now need to ensure that the entire industry in New York – 100% of it – is subject to our reforms."

The state’s settlement with QBE follows a deal New York struck with Assurant over the same type of practices. With QBE now settling, Cuomo says the deal resolves issues at two firms responsible for 90% of the force-placed insurance market in New York.

In the case of QBE, New York investigators claim QBE paid commissions to insurance agencies and brokers affiliated with mortgage servicers to secure their business.

In other words, rather than competing in the market by offering lower premiums for insurance, New York regulators claim QBE competed for banks and servicers' insurance business by offering them a share in the profits.

This meant higher premiums for homeowners and potentially more losses born by taxpayers if the loans in question were owned or backed by Fannie Mae and Freddie Mac.

"Typically, the commissions are ten to twenty percent of the premium written on the servicer’s mortgage loan portfolio," Cuomo’s office said. But, he said, "the evidence from the investigation indicates that the affiliated agencies and brokers do little or no work for the commissions QBE had paid them."

New York authorities also pointed out apparent conflicts of interest.

Back in 2011, QBE bought Balboa Insurance Co., the force-placed insurance business of Bank of America. Balboa previously provided force-placed insurance on Countrywide and BOA-serviced mortgages, which are owned in large part by investors, Cuomo said.

The arrangement was profitable for Countrywide and BOA. However, the New York Governor says it also "created a potential conflict of interest insofar as Countrywide’s and BOA’s bottom line could improve as their Balboa subsidiaries force placed more policies."

Monday, April 15, 2013

Foreclosures are rising dramatically in New York City — even as federal regulators are waging a fight to protect big banks from regulatory scrutiny of illegal foreclosure activity.

Nationwide, foreclosure filings dropped 23 percent in March compared with the year-ago period.

In New York City, by contrast, filings vaulted by 150 percent, which is the biggest percentage increase in 12 months, according to the foreclosure-information firm RealtyTrac.

“The trend is not only continuing but accelerating,” said Daren Blomquist, vice president of RealtyTrac.

Manhattan remains largely immune to foreclosure pain, but Queens, Brooklyn and Staten Island are taking it on the chin.

Foreclosures have been rising for six months straight in Brooklyn and 11 months in a row in Queens. Staten Island continues to have the highest foreclosure rate in the state, with 1 out of every 350 housing units in foreclosure.

Legal-services attorneys say more middle-class New Yorkers are facing foreclosure. Squeezed by high housing costs and low wages, families cannot save to weather a job loss or medical crisis.

New York’s foreclosure uptick comes amid news last week that the Federal Reserve and Office of the Comptroller of the Currency refused a congressional request to turn over documents that were related to illegal foreclosures by mortgage servicers.

The excuse that was offered by Federal Reserve Chairman Ben Bernanke and Comptroller of the Currency Thomas Curry is that these documents come under the category of trade secrets.

“It is incomprehensible that federal regulators would claim that illegal bank actions — which they uncovered — are corporate trade secrets that must be withheld from Congress,” Rep. Elijah Cummings (D-Md.) told The Post.

Despite this setback, Cummings and Sen. Elizabeth Warren (D-Mass.) are pressing ahead with their requests, which were begun in January after the OCC abruptly shut down its review of the national foreclosure settlement.

Congress has the power to subpoena the Fed and OCC for the documents.

At a Senate hearing last Thursday, Warren said, “People want to know that their regulators are watching out for the American public, not for the banks.”

Friday, April 12, 2013

STATEN ISLAND, N.Y. -- The New York State Department of Financial Services has hired the American Arbitration Association to host mediation sessions between insurance companies and storm victims -- and 841 Staten Islanders who still have open claims for damage to real or personal property qualify for the assistance.

The mediation sessions are open to people whose claims for loss or damage to real or personal property were denied, in either part or in whole, or who haven't been offered a settlement within 45 days of submitting their documents. Flood insurance claims do not qualify.

Zaino said many of those more than 800 open claims will be resolved before going to mediation, but for others, it will be a good option. So far, just 15 Staten Islanders have registered for mediation, and the first one will be held tomorrow.

The two-hour process sees the insured and the insurance company sitting in a room with one of AAA's mediators -- all of whom will have more than five years' experience and 35 hours' training.

After a person accepts a settlement from her insurance company, she has three days to change her mind, Zaino said.

Citywide, there are about 15,000 claims still unsettled.

"We think mediation is the solution," Zaino said.

Borough President James Molinaro praised the program, saying Gov. Andrew Cuomo and others recognized insurance difficulties have been a prime concern since the storm.

"There was one complaint almost every family I spoke to gave me, and that was with the insurance companies," Molinaro said.

AAA needed a place to set up shop on Staten Island, so Molinaro reached out to Frank Siller of the Stephen Siller Tunnel to the Towers Foundation, who offered up space in their Hylan Boulevard office, where storm victims regularly visit for other types of help.

"So many people don't know the answers with their insurance companies, and I think Jeff is going to resolve that," Siller said.

To register for the program, visit adr.org, e-mail stormsandyny@adr.org, or call 855-366-9767.

Thursday, April 11, 2013

When the media discusses how banks have ridden like a steamroller over borrowers and investors, the typical response is a combination of minimization and distancing: that the offense wasn’t such a big deal and that it was a mistake. Recall the PR barrage in the wake of the robosigning scandal: its was “sloppiness,” “paperwork errors”. Servicers kept claiming, despite overwhelming evidence of bad faith and the institutionalization of impermissible practices, that there was really nothing wrong with how they were operating. Remember it was important for them to take that position, because if they were to admit that the bank knew it was engaging in widespread abuses with management knowledge and approval, it would be admitting to fraud.

Two major government settlements later, this position is looking awfully strained. And the Fed, in stonewalling Elizabeth Warren’s and Elijah Cumming’s efforts to get more information about the Independent Foreclosure Reviews, presented the bad practices as servicer policies, which means that they were deliberate, hence, fraudulent.

By way of background: Warren and Cummings have been asking the OCC and Fed for some time for more information about what happened in the foreclosure reviews. Out of fourteen information requests they made in a January letter, they got only one question answered in full, and mere partial responses to three other questions. They requested, and got, a meeting yesterday. They issued a letter Wednesday that described what transpired. Key sections:

Two years ago this week, your offices issued a public report announcing that you determined that 14 mortgage servicing companies were engaging in “violations of applicable federal and state law.” You found that these abuses have “widespread consequences for the national housing market and borrowers.” You also explicitly referenced instances of abuse, including illegal foreclosures against our nation’s men and women in uniform who are protected by the Servicemembers Civil Relief Act (SCRA)….

We have requested information about the process used to conduct this review and the extent to which violations of law were found….

At the meeting yesterday, Federal Reserve staff argued that the documents relating to widespread legal violations are the “trade secrets” of mortgage servicing companies. In addition, staff from the Office of the Comptroller of the Currency (OCC) argued that these documents should be withheld from Members of Congress because producing them could be interpreted as a waiver of their authority to prevent disclosure to the public of confidential supervisory bank examination information.

Now since the Fed is apparently making this absurd argument in all seriousness, let’s look at the implications. A trade secret is a form of intellectual property. I encourage IP experts to pipe up in comments, but my understanding, based on the experience of a client who successfully sued a former employee for violating trade secrets, is that it is difficult to prove that your internal know-how rises to the level of being a trade secret. One of the key elements in making the case is that you have to show you went to some length to keep your special tricks secret, such as limiting access to them, having employees sign confidentiality agreements, etc.

Why does this matter? You can’t have internal knowledge rise to the level of being a trade secret unless their was an institutional decision to keep it secret. That means the Fed is effectively saying that servicer management, and almost certainly bank management (since servicing units don’t have their own corporate counsel) was fully aware of the nature of the practices at issue and chose to keep them secret, supposedly for competitive reasons. This is fact is one of the things lawyers have been eager to establish, namely that bank management knew full well all these servicing tricks were happening, and sought to protect them as important sources of profit. Way to go, Fed!

Now, of course, this argument is revealing in a lot of other ways. The Fed has also just admitted it thinks it is more important to protect bank knowledge of how to break the law than expose the information. So the Fed has also made explicit that it wants to preserve banks’ ability to rip off people. So the Fed’s official policy is bank profits trump the law. Not that we didn’t know that, but it has now been stated in a baldfaced manner.

The OCC’s position, that they need to preserve confidential bank examination information, is equally ridiculous (the letter gives a long-form debunking). Warren and Cummings noted,

You may protect against such a waiver by including standard language in a cover letter explaining that providing documents to Members of Congress, even if normally not disclosed to the public because of their proprietary or confidential nature, does not constitute a waiver.

But it’s doubtful that the information at hand is “bank examination information”. The reason for keeping bank examination results confidential is to prevent bank runs. Mortgage servicing units are not banks. In fact, the OCC said repeatedly when it was pilloried for its failure to supervise servciers that didn’t have much in the way of formal authority over them. It wasn’t acting as a bank examiner of servicing units for the period that was the focus of the IFR, 2009 and 2010. Given the poor control over information during the IFR (for instance, at Bank of America, the army of temps who performed the project didn’t sign enforceable confidentiality agreements), and the fact that lots of relevant information (investor reports, court documents, including the affidavits used for the fraudulent fees) are public records, the OCC argument isn’t credible. It becomes even more of a howler when you look at the questions that the OCC and Fed are refusing to answer. Tell me how bank operations might be harmed by answering this question, for instance:

And why are the Fed and the OCC fighting Warren and Cummings so hard? It’s not as if the information they seek would help an individual borrower in litigation against a bank, except in a very general way. For instance, Warren and Cummings ask for the number of borrower files in which unsafe or unsound practices were found. If it was revealed that Bank of America had a high proportion of files with errors, as our whistleblowers found, that might persuade a judge that a borrower case not be thrown out in summary judgment.

But the real exposure of the banks is to investor litigation. The Bank of America sources who did fee reviews found virtually all their files had errors (their reflex was to say all files had errors, but most would then correct themselves and say 90% or 95% since they could not be sure someone didn’t get a batch of files that were fine). In many cases, the errors weren’t large enough to have caused a borrower to lose his house. But remember, if a home is foreclosed on, all fees (late fees, attorney fees, property inspection charges) are reimbursed first, so excessive frequency or size of foreclosure-related fees is a transfer from investors to servicers. So if the OCC and Fed were to confirm that there were large-scale abuses, investors might saddle up to go after the servicers.

This exchange also confirms something the public knows all too well: the regulators are in the business of protecting the banks, and only secondarily in enforcing the law. And until that changes, it is the safety and soundness of the population that is at risk.

Wednesday, April 10, 2013

Staten Island Legal Services will host a luncheon on April 19 to honor former Court of Appeals Judge Carmen Beauchamp Ciparick and to raise funds for the group's Hurricane Sandy legal support efforts. Former Governor Mario Cuomo will present Ciparick with Staten Island Legal Services' first annual Vito J. Titone Award for Legal Excellence, named for the Court of Appeals judge who died in 2005. Ciparick, who retired on Dec. 31 after 35 years on the bench, more than 18 on the Court of Appeals, is now of counsel to Greenberg Traurig.

Staten Island Legal Services has helped more than 400 people since the Oct. 29 storm and has 200 open cases, most involving FEMA and insurance issues. "When the storm hit, we were already taxed to capacity and suddenly we were tackling an area we had no experience in," said Nancy Goldhill, the group's director. "It's been extremely difficult." The group has raised funds to hire three additional attorneys to form a disaster recovery unit, which now has a full caseload. Sandy-related legal issues could take several years to resolve, said Goldhill, who added that the group is seeking additional funds to increase storm-related resources and maintain services in foreclosure prevention, family law, immigration and financial counseling.

The April 19 event will be held from noon to 2 p.m. at the Staten Island Hilton Garden Inn, 1100 South Ave. To RSVP or buy tickets, contact Clara Saviñon at 718-233-6494 or csavinon@silsnyc.org.

In a 7-2 decision, the United States Supreme Court ruled in the case of Marx v. General Revenue Corp. that a provision of the Fair Debt Collection Practices Act (the FDCPA), namely 15 U.S.C. §1692k(a)(3) does not prohibit a court pursuant to a potentially conflicting or superseding provision of the Federal Rule of Civil Procedure from otherwise awarding costs to the defendant as the prevailing party in the litigation.

The facts of this case show that General Revenue Corp. (GRC) was hired to collect on a defaulted student loan by Marx. In response to the collection activity, Marx filed suit against GRC alleging that it violated the FDCPA by making harassing phone calls, threatening to garnish an improper percentage of her wages and wrongfully sending correspondence to her employer requesting information on her employment status. The District Court ruled in favor of GRC following a bench trial, finding no violation of the FDCPA. Afterward, GRC submitted a bill of costs for witness fees, witness travel expenses and deposition transcript fees totaling $7,779.16 pursuant to FRCP 54(d)(1). The District Court disallowed certain items but entered an award of $4,543.03 in favor of GRC. Marx sought to vacate the District Court's award on the basis that the FDCPA provides, in essence, the exclusive basis for an award of costs under FDCPA based actions but that this controlling statute did not apply to these facts.

The purportedly controlling statute, 15 U.S.C. §1692k(a)(3) provides that if a plaintiff's action under the FDCPA "was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys' fees reasonable in relation to the work expended and costs". FRCP 54(d)(i), on the other hand, states that "[u]nless a federal statute¼ provides otherwis e, costs - other than attorneys' fees - should be allowed to the prevailing party" (emphasis supplied). Marx argued to the District Court that since she was not found to have asserted her claim in bad faith or for purposes of harassment, then 15 U.S.C. §1692k(a)(3) is a federal statute which does "provide otherwise" and thus displaces the ability of a court to award costs pursuant to FRCP 54(d)(i). Neither the District Court, the 10th Circuit Court of Appeals, nor the United States Supreme Court agreed with Marx's analysis.

The crux of Marx's argument, as the Supreme Court saw it, was that a court's discretion under FRCP 54(d)(1) to award costs was displaced by negative implication under §1692k(a)(3). In other words, since the statute speaks to an award of costs where both bad faith and harassing conduct exist, then an award of costs is unavailable absent such conduct. The Court rejected this argument, however, as an attempt to read too much into congressional intent, determining that the context instead indicated Congress's intent that the statute did not foreclose an award of cost under the Rule, even in the absence of bad faith and harassment in Marx's pursuit of the FDCPA action.

Although a court's discretion remains limited in awarding attorneys' fees to the prevailing party to the "American Rule" (each party pays their own fees) except in instances of bad faith and harassing conduct in FDCPA cases, it is now uniformly established that a court has the discretion to award costs to the prevailing party defendant irrespective of the plaintiff's motive or conduct in bringing the action. Because costs can in and of themselves represent a significant outlay, this decision may serve to cause FDCPA plaintiffs to think twice before bringing an FDCPA action if the facts are not clearly in their favor.

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